Rights bridge the real and the ideal

In May next year, South Africa will celebrate 20 years of its final Constitution. It has received much praise internationally, but in South Africa the story is more complex.

A refrain is constantly heard about the chasm between the aspirations of the Constitution and the reality faced by many, if not most, South Africans.

In the face of these realities, has the rights project failed? Are rights simply empty promises? To answer these questions, it is necessary to understand what rights are and what they aim to achieve.

It is useful to sharpen the question by considering the inclusion of socioeconomic rights — rights to food, housing, healthcare and education — in the Constitution.
Questions have been raised about the meaningfulness of constitutionalising such rights in circumstances where they seem difficult, even impossible, to realise fully.

The first case to confront the Constitutional Court on socioeconomic rights, Soobramoney vs Minister of Health (KwaZulu-Natal), illustrated this issue starkly. It concerned a claim by Thiagraj Soobramoney, who was suffering from chronic renal failure, that in terms of the Constitution he was entitled to the continued provision of kidney dialysis by the state, because he could not afford it himself.

Given the limited number of dialysis machines, the state had adopted a rationing policy, only providing dialysis to those who had acute renal failure that could be treated and remedied, or those eligible for a kidney transplant.

The majority of the court dismissed Soobramoney’s argument. He died a few days after the judgment was handed down. The court considered whether Soobramoney could claim a right to kidney dialysis in terms of the right of everyone to have access to healthcare services, as enshrined in section 27(1)(a) of the Constitution.

Arthur Chaskalson, then the judge president, found that the court needed to respect rational decisions taken in good faith by other branches of government on the rationing of scarce healthcare resources.

This statement expressed the dominant approach of the court to interpreting this right: “What is apparent from these provisions is that the obligations imposed on the state by [sections] 26 and 27 in regard to access to housing, healthcare, food, water and social security are dependent upon the resources available for such purposes, and that the corresponding rights themselves are limited by reason of the lack of resources.”

There is an ambiguity in this statement that requires some thought; it affects the way rights are to be adjudicated and given effect. Do we define our rights in relation to the resources that are available, or do we define our entitlements independently of resource constraints?

In the latter case, the rights exist independently, though resource constraints may mean that they cannot be realised at present.

Fundamental rights should be seen as “bridging concepts”, moral entities with an inherent nature that creates a push towards legal institutionalisation and social realisation. Rights bridge the divide between the ideal and the feasible, and require the adoption of a concrete programme to bring them into reality. That, in turn, means we should launch an inquiry into our normative ideals and the constraints — empirical or normative — on their realisation.

The bridging conception also points to the idea that rights must be ideals that are feasible to realise. As such, there is no sense in making a claim that would be utterly impossible to realise.

Thus, if someone claimed that she possessed a right to fly unaided, we would have to reject it, given that there are no conditions under which such a claim could be physically realised. Such a rejection would be unremarkable: it would simply be an expression of the more generally applicable ethical principle that “ought implies can”.

But understanding the application and scope of this principle in relation to fundamental rights raises difficulties. Economist and philosopher Amartya Sen, for instance, challenges the assumption that a necessary condition for the existence of a right is its complete achievability. Rights, he claims, often suggest “the need to work towards changing the prevailing circumstances to make the unrealised rights realisable and ultimately realised”.

He points out, too, that a stringent condition of complete attainability would also rule out many civil and political rights from being recognised as fundamental because it is becoming ever more difficult in our current world to ensure the complete protection of liberty.

Sen suggests that it is a misapplication of the “ought implies can” principle “to suggest that claims that are not yet fully realisable cannot be taken to be rights at all. To see the ethical force of some claims is also a demand to consider what one should do to make them realisable, for example, through working for the development of new institutions.”

Understanding fundamental rights as bridging concepts requires us to build on Sen’s approach and consider in more detail the relationship between the claim that a fundamental right “ought” to be realised and the idea that it “can” practically be achieved.

The burden of Sen’s argument is that rights can exist in circumstances where they are not “fully realisable” at present: as long as it is possible to realise them partially, or to take active steps to bring about their realisation, a rights claim can be valid.

It is important to recognise here that rights retain an action-guiding element: a statement of an ideal without any guiding action cannot qualify as a right.

Let us consider these ideas in relation to the scarcity of resources.

I first want to consider what may be termed “absolute resource unavailability”, which arises when a particular resource no longer exists. Let us imagine a world where all the oil reserves have been utilised and there are no more. This world lacks alternative sources of energy to enable planes and vehicles to operate. As a result, people are severely restricted in their ability to move around.

Let us imagine that a person claims that their right to freedom of movement entitles them to a specific right to oil-based sources of energy, which would enable them once again to utilise vehicles. Such a right would lack coherence in such circumstances and would need to be rejected for this reason alone, because it could never be realised again.

The broader right to freedom of movement, however, may place obligations on the government (and other actors) to fund research into alternative energy sources that would enable people once more to move around freely.

Thus, even in the face of significant natural constraints, there may well be obligations to find a method to address significant human interests within those constraints.

The more usual situation that arises is one in which there are limited natural resources but we have to consider the distribution of such resources among individuals.

A second significant source of what is termed “scarcity” results from social limitations. A good may be particularly expensive because of the structure of the modern marketplace and the monopolistic position of certain companies.

Consider the fact that life-saving drugs and technologies often fall within this domain, because pharmaceutical companies are granted exclusive patents to exploit the drugs they develop for a particular length of time.

These patents are granted to compensate for research and development expenditure, but the price of the drugs and technologies often far exceeds the cost of their production, or the research costs involved in their development.

A country may not have the resources to supply these drugs or technologies in its public health system because of the pricing arising from the monopolistic structures of the market and not because of any inherent natural scarcity. Countries may also lack resources to acquire such medications because they are comparatively badly off economically, with a limited tax base and no access to credit on financial markets.

Identifying these reasons for scarcity is significant for understanding whether we can legitimately claim rights in a particular matter and the consequent obligations that may flow from particular rights claims. Situations of absolute resource scarcity are limited; most often, those who engage with rights will be faced with human-created constraints on their realisation. In such circumstances, rights claims may legitimately be asserted because scarcity is not absolute and it is possible to enable a greater realisation of rights by removing these constraints.

Importantly, though, when giving effect to rights, it will be necessary for courts, and other branches of government to consider the social structures that inhibit their realisation. Rights adjudication, advocacy and implementation thus inevitably require a consideration of not just of what must be done to realise the interest in question, but also of the obligations necessary to clear the obstacles to their realisation.

Let us return to the more concrete question of the decision in Soobramoney. The tenor of the argument so far suggests that the reasoning underlying the decision was mistaken. Soobramoney’s right to have access to healthcare services could plausibly be taken to include a right to kidney dialysis, which was necessary for his survival. Such a rights claim is not incoherent because it is neither physically impossible to provide nor is absolute natural scarcity at stake. The court should thus have found that Soobramoney had a significant interest that was abrogated and, consequently, that his right of access to healthcare services was infringed.

Of course, the court could still have found that the state’s rationing policy was a reasonable limitation on Soobramoney’s right. However, this requires understanding the reasons for the paucity of kidney dialysis machines, which in turn relates to several social decisions and constructs.

The expense of these machines may well relate to the structure of the healthcare market for them, and the government’s budgeting decisions may legitimately be affected by competing needs with a comparable level of priority.

The generally poor state of public healthcare and the failure often to offer even low-cost interventions may well have made it justifiable to refuse such an expensive medical treatment at that time. A finding that the government’s rationing decisions ought to be respected, however, need not have been the end of the matter.

If rights are a bridge between the ideal and the real, we must recognise, first, that there is something terrible about allowing a person to die if we have the means to keep him alive. As such, the ideal must clearly be that dialysis ought to be a matter of right for those unable to afford it, and that society should move towards providing dialysis for those who need it.

The court, though, avoids the need to construct any bridge to providing dialysis for all by not including it within the ambit of the right: we have simply defined away the expectations that it should be provided, at great cost to those who are poorest and still live with an unacceptable status quo.

The court could have recognised that the government’s decision on Soobramoney was reasonable under present circumstances, but, at the same time, held that it had a duty to ensure that dialysis over time was available to an increasing number of people (with the ideal being it would be available to all who needed it and were unable to afford it themselves).

The court could have required the government to create measurable goals and targets that would, over time, lead to the expansion and the improvement of its health programmes, including the provision of dialysis on an extended basis.

If rights are bridges, then we cannot simply be comfortable with a particular balancing decision in the here and now; decision-making bodies must be concerned with ensuring that the structures for the future improvement in the realisation of rights be put in place.

These points are also important in relation to another problem of feasibility that arises, particularly in the case of developing countries: in many cases, there is limited human capacity and expertise to develop programmes to fulfil rights.

Rights often remain unfulfilled because of a shortage of skills as well as administrative and managerial acumen to ensure that they are realised. For effective realisation,

adjudicatory bodies such as courts will have to adopt a wider, more holistic approach that considers this lack of capacity and methods to address the problem.

Where there are clear deficits in the decision-making of government bureaucracies, it may not be sufficient for courts simply to declare that rights have been violated and to order their realisation. Courts may need to understand the causes of governmental failure and to require that measures be adopted that to make realisation more achievable.

In India, for instance, recognition of managerial and bureaucratic problems has, on occasion, led courts to appoint special functionaries to supervise the implementation of programmes to advance rights, most notably in the People’s Union for Civil Liberties vs Union of India, which concerned the right to food. Greater attention to institutional and systemic factors are thus necessary in rights adjudication.

An illustration of the inadequacy of existing judicial approaches and the potential of the revised approach I am advocating can be seen in a 2010 case in South Africa, Nokotyana and Others vs Ekurhuleni Municipality. It dealt with a claim by the residents of an informal settlement for the provision of temporary sanitation facilities and high-mast lighting.

For three years, the provincial government had delayed making a decision whether to upgrade the informal settlement in question to a formal settlement, which would have led to improved conditions, and the facilities claimed by the residents would have been provided.

The court found that the underlying cause of the complaint lay in the failure to make a decision on the upgrading. It ordered the provincial government to make a decision within 14 months.

On an initial reading, it would seem that the approach adopted by the judges might follow the arguments made thus far. But aspects of this decision count against such a conclusion.

No provision was made by the judges for addressing the temporary plight of the people in the informal settlement who lacked adequate sanitation facilities. Understanding fundamental rights as bridging concepts means we cannot ignore the serious invasion of people’s fundamental interests in the short term in favour of longer-term gains and benefits.

The Constitutional Court recognised this point in the Grootboom case, where it found that the government housing programme was unconstitutional precisely because it promised individuals a home in the longer term without any provision for the shorter term.

Understanding rights as bridging concepts explains why this is important: if a person’s fundamental rights are so severely violated in the shorter term that they either do not survive or are seriously harmed, rights will fail to function as a bridge to a better state of affairs for those people.

Given that rights attach to specific individuals, we cannot simply sacrifice a few individuals for the benefit of others in the future. This is precisely what distinguishes rights-based thinking from crude utilitarian trade-offs: every individual must be considered and must have the potential to cross the bridge into a brighter future.

That requires ensuring at least survival and a minimum level of provision in the shorter term.

The court order in Nokotyana was also deficient because it did not consider the causes or reasons for the failure of decision-making by the government. Simply to order the government to make a decision may not help if there are deep, underlying problems that led to this malaise.

For instance, the court could have asked for clear reasons for the delay thus placing a burden of justification on the government department or minister in question.

If there is a failure to provide adequate reasons, the court could order an investigation to be undertaken by independent assessors and, in light thereof, to provide orders that seek to address the underlying problems that led to such poor decision-making. This wider lens would enable the court to craft effective orders but also, in many ways, to address problems of governance that affect the realisation of rights more generally. Such an approach would help recognise and address real, structural obstacles to rights realisation and thus create a more solid bridge.

Let us return to the questions I posed at the beginning: Have fundamental rights failed in some way? Are they empty promises?

The tenor of my argument is against a self-defeating conclusion, in that fundamental rights are significant precisely because there is a struggle to move them from the domain of morality into law — from theory to practice.

The bridging conception challenges legislators, judges and academics to improve the mechanisms that enable the transition from the ideal into the real, understanding the clear constraints that exist in our society.

Rights, according to this idea, involve a sense of movement and change — an optimistic idea that continually pushes us and challenges us in the face of an imperfect reality.

At the 20-year mark since the final Constitution, the gap between the Bill of Rights and the reality for many South Africans must not leave us defeated: rather, it is a call to action to all segments of our society and all branches of government to bring this vision into reality.

It is not time to give up on the noble ideals and principles that animate the Constitution but rather, with renewed vigour, to assess how to remove the current obstacles to their realisation.

Rights, in a sense, contain an internal tension between a moral ideal and the imperfections of human institutions: it is in reducing that tension and narrowing the gap between the ideal and the real that the progress of a country such as South Africa and, indeed, perhaps the entire world, lies.

This is an edited excerpt from Professor David Bilchitz’s inaugural lecture at the University of Johannesburg. He is the director of the South African Institute for Advanced Constitutional Law and secretary general of the International Association of Constitutional law